Davis v Owners Corporation SP 63429 - [2018] NSWCATCD 27

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Davis v Owners Corporation SP 63429 [2018] NSWCATCD 27
Hearing dates: 2 and 8 November 2017
Date of orders: 21 June 2018
Decision date: 21 June 2018
Jurisdiction: Consumer and Commercial Division
Before: T Simon, Senior Member
Decision:
(1) By consent, the Tribunal prescribes that the by-law set out in attachment 1 is to replace by-laws 46.2 (attachment 1 is attached to these orders).

(2) By consent, the Tribunal orders that within 60 days the Owners Corporation cause to be registered on title: Folio CP/SP63429 a "change of by-laws form 15CH" recording that special by-law 46.2 has been replaced by the foregoing.

(3) By consent, the Tribunal orders that the respondent effect all repairs to or replace common property necessary to prevent water ingress into the main bedroom on the upper story of lot 18, by 28 February 2018.

(4) By consent the respondent will retain an independent qualified engineer to provide a cope of works in order to comply with order 3 above ('Works'). Thereafter the respondent through its chosen contractors will undertake the "Works"

(5) Orders 3 and 4 are subject to the Applicant providing access to the Owners Corporation, its chosen contractors, engineer and persons working with the engineer on 4 days written notice, to comply with orders 3 and 4.

(6) The Tribunal declares that special by law 59 is invalid on and from 23 March 2016, being the date when it was adopted.

(7) On or before 31 August 2018 the Owners Corporation is to cause to be registered on title: Folio CP/SP63429 a ‘Change of By-Law Form CH 15’ removing special by-law 59.

(8) On or before 31 August 2018 the Owners Corporation is to refund to the applicant all payments made by the applicant to the Owners Corporation pursuant to by-law 59.

(9) The Tribunal declares that special by law 19 as repealed and replaced on 8 December 2014 and as adopted on 27 June 2017 is invalid from 8 December 2014.

(10) On or before 31 August 2018 the Owners Corporation is to cause to be registered on title: Folio CP/SP63429 a ‘Change of By-Law Form CH 15’ removing special by-law 19.

(11) On or before 31 August 2018 the Owners Corporation is to refund to the applicant all payments, levies and/or contributions paid by the applicant to the Owners Corporation clause 19.8 of by-law 19.

(12) If either party seeks to make an application for costs, they are to provide to the Tribunal and the other party, either in person or by post, submissions and documents in relation to costs by 3 July 2018.

(13) Parties are to provide to the Tribunal and the other party any response to the costs application, either in person or by post, submissions by 17 July 2018.

(14) Costs will be determined on the papers. If either party seeks to be heard in person, they should advise the Registry prior to 17 July…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Davis v Owners Corporation SP 63429

Details

AGLC: Davis v Owners Corporation SP 63429 [2018] NSWCATCD 27
Case: [2018] NSWCATCD 27
Decision Date: 21 June 2018

CaseChat Overview and Summary

The dispute between Davis and Owners Corporation SP 63429 was brought before the Civil and Administrative Tribunal of New South Wales. The central issue in the case was the validity and enforceability of certain by-laws within the strata scheme, particularly those concerning minor works and unauthorised works affecting common property. Davis contested the legality of these by-laws, asserting that they were either invalid or had been improperly implemented, leading to water ingress issues in his property.

The court examined whether the by-laws in question were properly enacted and whether they complied with the requirements of the Strata Schemes Management Act 1996. The Tribunal found that certain by-laws were invalid due to procedural issues in their adoption or because they were inconsistent with the legislative framework governing strata titles. The court also determined that the Owners Corporation had failed to properly manage common property, resulting in water damage to Davis's unit.

The Tribunal ruled that specific by-laws were invalid and ordered their removal from the strata title. Additionally, the Tribunal mandated that the Owners Corporation undertake necessary repairs to prevent further water ingress and refund any levies paid by Davis under the contested by-laws. The Tribunal also set out a timeline for the Owners Corporation to complete these tasks and for the registration of changes on the strata title. Furthermore, the court established a process for the parties to seek costs, stipulating deadlines for submissions and responses.

The final orders included the replacement of certain by-laws with new ones, the removal of invalid by-laws from the strata title, the requirement for the Owners Corporation to repair and refund, and specific timelines for these actions. The Tribunal also outlined a procedure for the parties to apply for costs, including deadlines for submissions and potential in-person hearings.

Orders

Orders of the court

(1) By consent, the Tribunal prescribes that the by-law set out in attachment 1 is to replace by-laws 46.2 (attachment 1 is attached to these orders).

(2) By consent, the Tribunal orders that within 60 days the Owners Corporation cause to be registered on title: Folio CP/SP63429 a "change of by-laws form 15CH" recording that special by-law 46.2 has been replaced by the foregoing.

(3) By consent, the Tribunal orders that the respondent effect all repairs to or replace common property necessary to prevent water ingress into the main bedroom on the upper story of lot 18, by 28 February 2018.

(4) By consent the respondent will retain an independent qualified engineer to provide a cope of works in order to comply with order 3 above ('Works'). Thereafter the respondent through its chosen contractors will undertake the "Works"

(5) Orders 3 and 4 are subject to the Applicant providing access to the Owners Corporation, its chosen contractors, engineer and persons working with the engineer on 4 days written notice, to comply with orders 3 and 4.

(6) The Tribunal declares that special by law 59 is invalid on and from 23 March 2016, being the date when it was adopted.

(7) On or before 31 August 2018 the Owners Corporation is to cause to be registered on title: Folio CP/SP63429 a ‘Change of By-Law Form CH 15’ removing special by-law 59.

(8) On or before 31 August 2018 the Owners Corporation is to refund to the applicant all payments made by the applicant to the Owners Corporation pursuant to by-law 59.

(9) The Tribunal declares that special by law 19 as repealed and replaced on 8 December 2014 and as adopted on 27 June 2017 is invalid from 8 December 2014.

(10) On or before 31 August 2018 the Owners Corporation is to cause to be registered on title: Folio CP/SP63429 a ‘Change of By-Law Form CH 15’ removing special by-law 19.

(11) On or before 31 August 2018 the Owners Corporation is to refund to the applicant all payments, levies and/or contributions paid by the applicant to the Owners Corporation clause 19.8 of by-law 19.

(12) If either party seeks to make an application for costs, they are to provide to the Tribunal and the other party, either in person or by post, submissions and documents in relation to costs by 3 July 2018.

(13) Parties are to provide to the Tribunal and the other party any response to the costs application, either in person or by post, submissions by 17 July 2018.

(14) Costs will be determined on the papers. If either party seeks to be heard in person, they should advise the Registry prior to 17 July 2018, setting out the reasons why and the Registry would advise of the outcome in due course.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Davis v Owners Corporation SP 63429 [2018] NSWCATCD 27
Hearing dates:	2 and 8 November 2017
Date of orders:	21 June 2018
Decision date:	21 June 2018
Jurisdiction:	Consumer and Commercial Division
Before:	T Simon, Senior Member
Decision:	(1) By consent, the Tribunal prescribes that the by-law set out in attachment 1 is to replace by-laws 46.2 (attachment 1 is attached to these orders). (2) By consent, the Tribunal orders that within 60 days the Owners Corporation cause to be registered on title: Folio CP/SP63429 a "change of by-laws form 15CH" recording that special by-law 46.2 has been replaced by the foregoing. (3) By consent, the Tribunal orders that the respondent effect all repairs to or replace common property necessary to prevent water ingress into the main bedroom on the upper story of lot 18, by 28 February 2018. (4) By consent the respondent will retain an independent qualified engineer to provide a cope of works in order to comply with order 3 above ('Works'). Thereafter the respondent through its chosen contractors will undertake the "Works" (5) Orders 3 and 4 are subject to the Applicant providing access to the Owners Corporation, its chosen contractors, engineer and persons working with the engineer on 4 days written notice, to comply with orders 3 and 4. (6) The Tribunal declares that special by law 59 is invalid on and from 23 March 2016, being the date when it was adopted. (7) On or before 31 August 2018 the Owners Corporation is to cause to be registered on title: Folio CP/SP63429 a ‘Change of By-Law Form CH 15’ removing special by-law 59. (8) On or before 31 August 2018 the Owners Corporation is to refund to the applicant all payments made by the applicant to the Owners Corporation pursuant to by-law 59. (9) The Tribunal declares that special by law 19 as repealed and replaced on 8 December 2014 and as adopted on 27 June 2017 is invalid from 8 December 2014. (10) On or before 31 August 2018 the Owners Corporation is to cause to be registered on title: Folio CP/SP63429 a ‘Change of By-Law Form CH 15’ removing special by-law 19. (11) On or before 31 August 2018 the Owners Corporation is to refund to the applicant all payments, levies and/or contributions paid by the applicant to the Owners Corporation clause 19.8 of by-law 19. (12) If either party seeks to make an application for costs, they are to provide to the Tribunal and the other party, either in person or by post, submissions and documents in relation to costs by 3 July 2018. (13) Parties are to provide to the Tribunal and the other party any response to the costs application, either in person or by post, submissions by 17 July 2018. (14) Costs will be determined on the papers. If either party seeks to be heard in person, they should advise the Registry prior to 17 July…